With prejudice is important. It frequently indicates the court’s opinion of misconduct upon the part of the claimant and forbids both parties from filing another claim.

A settlement agreement was brokered by the magistrate, we imagine both parties got a piece of his mind, but especially the moving party.

Stipulations include:

Both parties responsible for their own cost and attorney fees.

Removal of and cease further disparaging or defaming remarks towards each other.

Hovey must file within 20 days, at her own expense, a disclaimer and forfeiture of her registration of her claim to copyright in the “Photograph”.

We suspect this did not work out quite as she hoped, out filing fees, attorney fees and loss of her copyright claim instead of $75k or more.

Two opinions:

We feel sorry that Poling got pulled into such a trivial matter and had to spend money.

People should remember that she was willing to risk giving up the identity and location of her witness during discovery in the hope to make some money off this suit. We think that’s a violation of ABS rules, but who needs no stinkin rules when you are the Pres. Fine hair to cut as she will cut it as part of a swerve, she never had to, but it would have happened if she continued down the path she had set in motion. And that is how it will be spun, she nobly withdrew to prevent it – baloney.

We are outraged someone would put a witness, nay a bigfoot who posed for the best bigfoot picture ever, at risk that way. Outraged, flabbergasted, shocked, chucklee chucked.

Last week Poling filed both an Answer and Counterclaim to Hovey’s federal lawsuit seeking in excess of $75,000 against Poling for his publication of the “bigfoot back shot” picture – aka the Photograph. To boil it down:

Poling admits publishing the photo and then pretty much denies or has no knowledge of the rest of Hovey’s assertions. One particular denial is that Hovey has no lawful right or interest in the Photograph, her registration is not valid and cannot be enforced. He, by counsel, also identifies eight affirmative defenses and uses some of Hovey’s own postings to her blog and other words in support. These include:

Hovey has no right or interest in authorship or artistry of the Photograph and received no assignment of right, making her sworn claims of Copyright ownership as willfully false and fraudulent.

Hovey allowed use of the Photograph freely for non-profit and educational purposes, which is what Poling did.

The Photograph is of a costume, and is incorrectly characterized by Hovey as a live bigfoot.

Hovey fails to state a claim upon which relief can be granted.

Hovey has failed to join necessary parties. (We read this as other’s did the same with the Photograph but Hovey did not act, or the necessary parties are the ABS – copyright on the photo says one thing, her registration is for herself).

Hovey’s claims are barred because of unclean hands as a result of her own misconduct and wrongdoing. (We think – hee, hee)

Poling then presents a Counterclaim as part of his answer, again using some of Hovey’s published, audio and visually recorded words. His counterclaim alleges Hovey:

Falsely and fraudulently claims copyright ownership. He references two exhibits of Hoveys words and deeds asserting she has widely and publicly admitted she has falsely claimed and registered her claim to copyright of the Photograph. She falsely and fraudulently swore a claim to the Federal Court that she is the lawful owner. Hovey has so lawful interest but has admittedly usurped this right form the owner and others who independently posses copies of the Photograph. Hovey allowed others to use the Photograph but singled out Poling for litigation. Her copyright and other claims are abject failures (great lawyereese there) and this was known by Hovey and counsel prior to their effecting service of the Complaint (we speculate this means Poling got a lawyer letter saying stop and making a monetary demand or we will sue and Poling told them to stuff it). Because of the false and fraudulent claim Poling seeks legal fees and costs of at least $25,000.

Defamation Hovey has repeatedly and with malice called Poling a “lair” and a “thief” in her blog.

Frivolous Conduct Hovey brought this action for the express purpose of harassing Poling with this frivolous action. Further the express purpose of this action to extort a settlement. Hovey’s claims are not warranted and cannot be supported with a good faith argument of existing law, and it violates Ohio code which prohibits frivolous conduct. Poling again asks for $25,000 for his costs, expenses and attorneys’ fees for defending Hovey’s claim and for more that can be reasonably accounted for and shown to the Court.

The other new document are notes regarding a telephone and email conference of the parties. We can boil it down to Hovey desires more time for this mess to proceed and the chance to amend her claim, Poling wants it to move fast and at an administrative level of proceedings. Both parties expect discovery to be lengthy, mostly because so much of the stuff is on the internet.

Things will likely slow to a crawl now, unless Poling is successful in his answer.

Readers have asked what is up with the litigious one? Not much to report on this suit. Unfortunately, Poling has had to retain an Ohio attorney. We are considering championing a defense fund. Poling was granted a motion to extend the time frame of their initial response, case management is scheduled for later in the month.

Editorial Statement – In our opinion the hypocritical nature of this lawsuit should be front and center. Over the years Hovey and her ABS preached, crowed and said they would black list those persons and groups who do not respect the rights of witnesses – primarily the right to privacy, if requested. If we were advising Poling, at the top of the list for discovery would be all electronic correspondence and a deposition of Hovey to discover the name and contact information for the alleged photographer. That person giving Hovey the rights to the photo is key, and anything less than a personal interview with this person to resolve that question is unacceptable. By filing this suit, Hovey placed that person’s want to privacy behind her desires to whatever she is trying to accomplish – money damages seem to be in the mix. Imagine that witness getting a summons to appear in Ohio, way to treat the witness. This video is fitting, but change the title to “Throw the Witness Down the Well“.

We pulled up the filing to provide some more information for readers. While it includes information such as address and phone number, we will refrain from publishing that data.

The action is for copyright infringement and defamation.

Hovey contends the following facts (we are leaving some of the assertions out for brevity sake):

In late 2008 she formed the American Bigfoot Society. In late February of 2012 she secured the exclusive rights and priviledges in and to the copyright of a photograph known as the “2012 Bigfoot Photo”. The certificate of registration is included as an exhibit – Hovey is listed as the author and that the author created a photograph(s). The certificate is in her name, not the ABS. The actual photographer’s name or location are not mentioned, at least not yet. So one of two things must be a fact to make this assertion; bad news for the rest of the ABS, the ABS is Hovey exclusively, or she posted the copyright incorrectly as it is in her name but ABS on what was put out on the net.

Poling infringed upon this copyright continuously since late February of 2012 resulting in irreparable damage to Hovey. Hovey notified Poling of the infringement but it has continued.

Poling posted material online, both written and video, containing false statements about Hovey, including, but not limited to, Hovey stealing money, stealing the material relating to the copyrighted photo, used the photo for monetary gain rather than research, released video for the purposes of fame rather than professionalism, was an amateur, and filed false claims under a digital copyright act and received funds for participating in conferences.

The above acts caused damage to Hovey’s business (bigfooting and the ABS? again the rest of you’se folks of dues paying members and bored do not count) and reputation as she has since had to close memberships to her organization, received threats from members of the community (we really hate that word when talking bigfoot, it is more a bunch of tribes and fiefdoms) and suffered emotional distress.

3. Defamation Per Se – Hovey suffered from Poling’s words as it injured her trade or occupation.

4. Conversion – Poling used Hovey’s property and she was damaged by that action.

What Hovey wants:

A preliminary injunction to end Poling’s action (as it relates to the photo and other content, we guess).

Relief from the court finding Poling has engaged in copyright infringement, defamation and conversion. And the big ones, damages, cost of action and reasonable attorney fees for copyright infringement, defamation (two counts) and conversion. Damage award sought is in excess of $75,000 on all counts – not sure if that is a total or $75k per count.

No opinion or editorial statements just yet, we will let people stew over the above first. Well, we did include a few observations.

It’s been filed for over a month, but we have not seen anything mentioned. So it is possibly an exclusive, breaking news from the BFE. We will be accessing court documents soon, the filing should be illuminating. If someone else wants to do that legwork, have at it. The info you would need appears below.

Some words come to mind, unkind words. Let’s just leave it at she is a nuisance, in so many ways. We are unhappy that an overworked court with scarce time has to expend any of it dealing with this.

Case Filed in: Federal Court, Northern District of Ohio, Toledo

Case #: 3:2013cv00615

Filed on: 3/21/13

Plaintiff demands trial by jury

Some background info: Hovey claims to have received a picture years ago. Others also received it. Hovey issued an ultimatum to the picture taker and eventually published it with a copyright to the American Bigfoot Society, one of those self-founded organizations where the person claims the dictatorship. Poling makes a video and posts on youtube panning the picture and the whole copyright strategy. Others also publish the photo, which is widely panned. Hovey threatens Poling and black lists Team Taze Bigfoot. And about one year later she ponies up the $350 filing fee and sues Poling individually in federal court on a copyright violation.

An interesting cached post about the nuisance, we saw a pattern long ago, it continues. Confirming evidence that her version of fieldwork is sitting by a fire in the field, we’ve heard that one before and it crops up again.

Something that is often amusing, and yet frustrating, is the hypocrisy of bigfootery. Sometimes it is as basic as the old – enemy of my enemy is my friend stuff, but often times it is more complex. We say hypocrisy is the transmission fluid of bigfootery because it keeps the field moving, sometimes in reverse, but moving none the less. Ego is probably the gas, ambition the oil, but hypocrisy still plays a major role, like tranny fluid. Walking the talk is a rare thing to find in some of the advanced level “bigfoot researchers”, convenience and gain mean more, and hypocrisy is a convenient lubricant. We present four examples for your consideration:

Last year a group made a big issue of witness protection while continuing to have an official in the organization that had penned a blog doing the exact thing that the group said would result in being black listed from their good graces. As if that was not hypocritical enough, one of the frequent targets of that blog, a youtubin bigfooter, has now allowed himself to become chummed up with the self-appointed head honcho of the organization. Does he know this connection? How can the honcho smile at one of her director’s main blog victims, using him for whatever purposes she pleases? How can this director still be directing given the bold, public stance of they would not “condone harm coming to witnesses” and “would not allow this type of behavior from one of our members”? Simple answer to all of those questions – hypocrisy, actually double dog dare hypocrisy.

One of the promoters of an event that we prophetically predicted would be bigstinkery last year recently released a teaser video promoting the event and asking if people are tired of the same old events and the same speakers. A few weeks later we learned of his involvement in another event that, get this, has the four same speakers as the event had last year. There might be one new guest, but to us that sounds like the same old event and same speakers, in extremis. Having it both ways, a hallmark of bigfootery hypocrisy.

Speaking of the event we rightly panned last year, they had a problem with a speaker that they did not have wrapped up before announcing and pimping this famous bigfooter. When said bigfooter learned this was happening he made it clear he had not agreed and could not attend. After holding that information back until it broke out in other venues, the disorganizers claimed the guy could not attend for health reasons. And now what are they saying? The infamous bigfooter backed out on them and they have learned their lesson by getting signed agreements. Having it many ways with many, sometimes inconsistent, excuses, all of which do not rest any blame with the disorganizers, classic bigfootery. So which one was it guys, was Bob sick like you said, did Bob shaft you by saying yes and then cancelling like you said, or are you poorly organized hypocrites, we think the latter.

Every once in a while someone who thinks they are established third level or higher “bigfoot researcher” will use the word “Noobs” to describe those who have recently come to bigfooting. We find the term offensive on many levels, especially when a “Noob” is decrying the “Noobs”. We find it hypocritical when one of these researchers talks about the damage of the “Noobs” to the “community” and then goes off to take the benefits of speaking to an audience of people they would prejudicially consider to be “Noobs”. We like new people, it keeps it interesting, provides the churn that the fourth level carnival barker “bigfoot researchers” need to reinvent themselves and buy their product(s) and the new people may well be the ones that get this done. More bigfootery hypocrisy.

Our advice to the new and somewhat new bigfooters, avoid the hypocrites, they will use you, abuse you and discard you when you are of no more value in advancing their myriad of agendas. And if you read or hear someone whining about this blog, deploy your hypocrite detector, it will probably go off. Like tranny fluid, they may seem sweet, but the stuff will eventually make you sick. Your mileage may vary, draw your own conclusions with hopefully an informed eye.

Good Morning Everyone… Melissa Hovey, one of our scheduled Speakers on May 19th and the Number One Female Bigfoot Researcher in the Country, will be bringing with and answering questions about her Copyrighted Picture of a Bigfoot